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Rustico v. Intuitive Surgical, Inc.

United States District Court, N.D. California, San Jose Division

December 19, 2019

JEAN RUSTICO, et al., Plaintiffs,


          LUCY H. KOH United States District Judge

         Plaintiffs Jean Rustico and John Rustico (“Plaintiffs”) bring the instant lawsuit against Defendant Intuitive Surgical, Inc. (“Defendant”). Before the Court is Defendant's motion for summary judgment, ECF No. 43, and Plaintiffs' motion for partial summary judgment, ECF No. 44. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS Defendant's motion for summary judgment. The Court DENIES Plaintiffs' motion for partial summary judgment.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs Jean Rustico and John Rustico (“Plaintiffs”) are husband and wife. ECF No. 30 ¶¶ 1-2. Both Plaintiffs reside in Florida. Id. Defendant Intuitive Surgical, Inc. (“Defendant”) is a Delaware corporation that is headquartered in California. Id. ¶ 3. Defendant manufactures and sells the robotic da Vinci surgical system, as well as electrosurgical equipment used in tandem with the da Vinci surgical system. Id.

         1. Jean Rustico's Surgery

         On January 12, 2012, Jean Rustico underwent a hysterectomy in order to remove an ovarian mass. ECF No. 43-1 Ex. A (“Operative Report”) at 1. The hysterectomy was performed by Dr. Clare Zhou (“Dr. Zhou”) at the Hospital of Central Connecticut. Id. Dr. Zhou used a da Vinci surgical system during the procedure, which included a “monopolar curved scissors” instrument with a tip cover accessory. Id.; ECF No. 43 at 2. The tip cover accessory served as insulation that was designed to prevent electricity from escaping from the da Vinci surgical system and injuring patients. ECF No. 30 ¶ 19.

         During the course of Jean Rustico's hysterectomy, Dr. Zhou noticed that the tip cover “on the monopolar scissors malfunctioned and leaked electricity onto the atherosclerotic aorta. This created an adventitial injury about 3-5mm in size.” Operative Report at 4. Dr. Zhou contacted Dr. Akella Sarma (“Dr. Sarma”), a vascular surgeon, who initially advised Dr. Zhou to suture the injury and continue with the procedure. Id. However, Dr. Zhou continued to note “brisk bleeding” “from the aortic injury.” Id. Accordingly, “the decision was made to convert to laparotomy” and an open repair of the aortic injury, id. which required Dr. Sarma to intervene and manually repair the injury, id. at 7. After Dr. Sarma repaired the aortic injury, Dr. Zhou completed the hysterectomy. Id. at 4-5.

         After Jean Rustico awoke, Dr. Zhou informed Plaintiffs that “there were complications from the robotic surgery during the surgery.” ECF No. 43-1 Ex. D at 33:25-34:1. Dr. Zhou indicated that there had been damage done to Jean Rustico's aorta, and that the cause of the damage had been “the robotical [sic] equipment malfunctioning.” Id. at 34:10-11. Specifically, Dr. Zhou told Jean Rustico that the da Vinci unit's “electrical component caus[ed] the damage.” Id. at 36:11-12. Jean Rustico's husband, John Rustico, was present for the discussion. Id. at 34:19-20. Jean Rustico did not ask Dr. Zhou why the surgical complication had occurred. Id. at 41:2-4. John Rustico testified that Dr. Zhou also separately explained to him that there had been “problems with the robot that led to Jean [Rustico]'s abdominal aorta being damaged, ” which had required Dr. Sarma's intervention. ECF No. 43-1 Ex. E at 21:2-3. John Rustico testified that Dr. Zhou had explained that there “was a burn that caused a hole in the aorta from malfunction of the robot.” Id.

         In a report that Dr. Zhou prepared on January 20, 2012, Dr. Zhou indicated that during the procedure on Jean Rustico, “the insulating sheath on the monopolar scissors malfunctioned and leaked electricity onto the atherosclerotic aorta.” ECF No. 48-1 Ex. 16 at ECF 231. In the days following the surgery, Dr. Zhou also informed one of Defendant's employees that during the procedure, “she was seeing arching [sic] throughout the case, replaced the tip cover 3 times and it didnt [sic] fix the issue.” Id. at ECF 223. Dr. Zhou testified that at some point after the surgery, Dr. Zhou “asked [Defendant], you know, are they going to make improvements to prevent this, and [Dr. Zhou] was under the understanding that something was going to be coming out.” ECF 48-1 Ex. 13 at 56:8-10.

         Jean Rustico was discharged from the hospital on January 16, 2012. ECF No. 43-1 Ex. D at 45:16-20. Notwithstanding the surgical complication, Jean Rustico was discharged in good condition. Id. at 46:5-7. Later, in September 2013, Jean Rustico witnessed a television advertisement and opted to contact an attorney to discuss a potential claim against Defendant. Id. at 41:22-25, 42:1-4.

         2. The Tolling Agreement

         On July 26, 2013, Defendant sent a proposed tolling agreement (“Tolling Agreement”) to Plaintiffs' counsel. ECF No. 43-1 Ex. B (“Tolling Agreement”). The Tolling Agreement provided a framework for potential plaintiffs who sought to file “personal injury claims for monetary damages against [Defendant] involving the da Vinci Surgical System.” Id. In particular, the terms of the Tolling Agreement indicated that the Tolling Agreement would “toll the applicable statute of limitations for a three month period starting on the date [Defendant] is provided with a Claimant's name. If necessary, this period may be extended upon agreement of the parties.” Id. The Tolling Agreement also stated in relevant part that “if a Claimant determines to file a lawsuit, any such lawsuit shall be filed in the Northern District of California only and only in the form of a single plaintiff family complaint.” Id. The Tolling Agreement contained an express disclaimer: “The tolling of the applicable statute of limitations is not intended to and shall not for any purposed be deemed to limit or adversely affect any defense, other than a statute-of-limitations defense, that [Defendant] has, may have, or would have had in the absence of this agreement. Nor does this agreement waive or release any statute of limitations defense that could have been asserted before the date of the tolling period. Upon the completion of the tolling period, [Defendant] will have all defenses available to it as it had on the first day of the tolling period.” Id.

         On August 9, 2013, Plaintiffs' counsel returned an executed copy of the Tolling Agreement to Defendant. Id. Later, on February 3, 2014, Plaintiffs' counsel sent Defendant a list of names, which included Jean Rustico, “for the purposes of including these folks as of today's date in the Penton Law Firm tolling agreement.” ECF No. 43-1 Ex. C. Although the record is unclear on the details, “[t]he parties subsequently extended the tolling agreement several times, ” and it appears that the instant claims “were continually tolled from February 3, 2014, until the filing of this lawsuit in April 2018.” ECF No. 43 at 4.

         B. Procedural History

         On April 13, 2018, Plaintiffs filed an initial complaint in the Northern District of California, which alleged claims for (1) strict product liability as to a defect in construction, (2) strict product liability as to a defect in design, (3) strict product liability as to a defect in marketing, (4) negligence and negligence per se, (5) strict liability, (6) negligent misrepresentation and/or intentional misrepresentation, (7) fraud, and (8) loss of consortium. ECF No. 1 ¶¶ 106- 154. Plaintiffs' claims alleged the existence in the da Vita surgical system of “insulation defects and/or surgical operational hazards that made [the da Vinci surgical system] more prone to causing electrosurgical injuries than open surgery.” Id. Defendant answered Plaintiffs' initial complaint on May 24, 2018. ECF No. 16.

         On July 17, 2018, Plaintiffs' counsel filed a motion to consolidate the instant case with twenty-five other related cases against Defendant. 5:18-CV-02186-LHK, ECF No. 25-1. On July 18, 2018, the Court granted the motion to consolidate, which thus consolidated the instant case with twenty-five other cases. ECF No. 29. For the purposes of efficiency, the Court instructed Plaintiffs' counsel and Defendant to each select one case each from the group of consolidated cases to litigate through dispositive motions and potentially into trial. ECF No. 35 at 58:11-14, 59:12-14. The Court set September 16, 2019, as the deadline for the selections. 5:18-CV-02186-LHK, ECF No. 102.

         On November 26, 2018, Plaintiffs filed the First Amended Complaint (“FAC”). ECF No. 30 (“FAC”). The FAC added two additional claims against Defendant: a claim for breach of express warranty, and a claim for breach of implied warranty. Id. at 42-45. On December 5, 2018, Defendant answered the FAC. ECF No. 33.

         On September 16, 2019, Plaintiffs' counsel selected the instant case as their allotted choice to proceed to dispositive motions and potentially trial. 5:18-CV-02186-LHK, ECF No. 113.

         Defendant filed the instant motion for summary judgment on October 4, 2019. ECF No. 43 (“Mot.”). On October 30, 2019, Plaintiffs opposed the motion, ECF No. 48 (“Opp'n”), and on November 15, 2019, Defendant replied, ECF No. 51 (“Reply”).

         Concurrently, Plaintiffs filed the instant motion for partial summary judgment on October 4, 2019. ECF No. 44. Defendant opposed the motion on October 30, 2019, ECF No. 49, and Plaintiffs replied on November 15, 2019, ECF No. 52.


         Summary judgment is proper where the pleadings, discovery, and affidavits show that there is “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id.

         The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the nonmoving party fails to make this showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323.

         At the summary judgment stage, the Court must view the evidence in the light most favorable to the nonmoving party: if evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).


         In Defendant's motion for summary judgment, Defendant argues that Plaintiffs' claims are all untimely. In order to resolve the issue of timeliness, the Court must first determine whether the California or Connecticut statute of limitations governs Plaintiffs' claims. As ...

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